Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/214806
Rock by Benjamin M. McFarland Despite MSHA's contrary position, mobile equipment parked on a 'ready line' does not necessarily establish that it is "ready" for inspection for purposes of the Mine Act. Drawing THE CORRECT LINE T Benjamin M. McFarland is a member in Jackson Kelly PLLC's Wheeling, W. Va.. office, where he practices with the Occupational Safety and Health Practice Group. He is also a member of the firm's Oil and Gas Industry Group. McFarland can be reached at 304-233-4000 or via email at bmmcfarland@jacksonkelly.com. he Mine Safety and Health Administration (MSHA) has long taken the position that "Inspectors must inspect equipment for safety defects which is parked at ready lines or similar areas unless such equipment is tagged or marked out of service."See MSHA's Handbook for Metal and Non-metal Mines, April 2013 [emphasis added]. MSHA's Handbook generally defines a "ready line" as "areas where mobile or similar equipment is parked and ready for immediate use." While many mines do have designated areas where mobile equipment that is available for use is parked, this does not necessarily mean that the equipment has been pre-shifted. Because the regulations require an operator to pre-shift mobile equipment prior to placing it into operation on any particular shift, such equipment is not technically ready for "immediate use" until it has been properly examined for defects. MSHA often takes the position that, unless mobile equipment has been tagged as out of service, the equipment is ready for immediate use and is, therefore, free game for inspection regardless of whether it has been pre-shifted. This has resulted in violations being issued on mobile equipment that has neither been pre-shifted nor operated on a particular shift. Predictably, operators have taken issue with these citations, and, in at least two cases, courts have found that MSHA is overstepping its bounds and that an operator has the right to pre-shift the equipment before the violation can be issued. For example, Judge Koutras recently vacated a citation because it was issued without affording the operator the opportunity to pre-shift the mobile equipment at issue. See Loudon Quarries, Div. of Chantilly Crushed Stone, Inc., 34 FMSHRC 643 (March 14, 2012, ALJ Judge Koutras recently vacated a citation because it was issued without affording the operator the opportunity to pre-shift the mobile equipment at issue. Koutras). The citation involved a front-end loader and alleged a violation of 30 C.F.R. ยง 56.14100(b) because the brake lights on the machine were not functioning. To support the violation, the inspector alleged that the "loader was on the ready line to be used when needed," and that a company employee had "checked" the loader prior to the inspection AGGREGATES MANAGER December 2013 33